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California Checkpoints - DUI and Driver's license checkpoints in California

Posted by attorney William Daley

California DUI checkpoints are also commonly referred to as

•DUI / driver's license checkpoints,

•sobriety checkpoints,

•drunk driving sobriety checkpoints, and

•DUI roadblocks.

Drivers stopped at checkpoints and found to be impaired are generally charged with Vehicle Code 23152a VC driving under the influence and Vehicle Code 23152b driving with a BAC .08 or greater.

That said, when a driver is arrested for DUI at a checkpoint, it is often possible to fight the charges successfully. For one thing, police at checkpoints typically don't observe any "bad driving" (such as weaving). Therefore they can't prove that the person's driving ability was really impaired.

Second, a savvy DUI defense lawyer can sometimes challenge the validity of the checkpoint itself. If this challenge succeeds, it typically means the whole case gets dismissed.

If the California DUI checkpoint does not adhere to very specific legal requirements, your charge may be dismissed. Some of the most common California legal defenses that apply to sobriety checkpoints include:

•supervising officers were not present or in charge of the roadblock,

•there was no adequate warning of the upcoming checkpoint,

•there was no available route for a driver to drive away from the sobriety checkpoint, and

•the multitude of additional California DUI defenses that are available to fight your California DUI charge because if you successfully fight the underlying DUI charge, the fact that the stop was at a checkpoint becomes irrelevant.

Penalties

The penalties for a California DUI conviction are virtually the same whether your arrest originates at a DUI / driver's license checkpoint or somewhere else. It's the impaired driving that is being punished, not the manner in which you are caught.

That said, there is one difference. If you are arrested at a checkpoint for driving without a license, your car will be impounded for 30 days, regardless of whether or not you were impaired. This is the one penalty that distinguishes checkpoint arrests...and one that has generated quite a bit of controversy (discussed below in Section 3.1. The financial incentive behind driver's license checkpoints).

  1. What is a California DUI Checkpoint?

A California DUI checkpoint provides officers with a scheduled opportunity to screen drivers to determine whether or not they are under the influence. This is one of the exceptions to the rule that an officer must have probable cause to initiate a California DUI investigation. And while the politically correct "stated" purpose of a DUI checkpoint is to deter drunk drivers , we know better...it's to arrest drunk drivers.

The law enforcement agency that is operating the checkpoint will section off a portion of the road so that drivers ultimately merge into one or two lanes before coming to a stop. The officer asks the driver to roll down his/her window so that they can engage in a brief discussion. This dialogue allows the officer to evaluate whether he/she believes the driver may be driving under the influence.

Specifically, the officer is looking to see whether or not the driver fumbles when asked for his/her license and registration, and whether the officer

•smells alcohol,

•observes any alcoholic beverages, drugs or drug paraphernalia in the vehicle, or

•observes slurred speech, red-watery eyes or any other signs of physical impairment.

If the officer believes that the driver is impaired, he/she will direct the suspect to an area to perform California DUI field sobriety tests "FSTs" At that point, a typical drunk driving investigation will ensue. At the conclusion of the investigation, the officer will immediately arrest the driver if he/she believes that the driver is driving under the influence of alcohol or driving under the influence of drugs "DUID" in violation of California law.

And not only is the officer looking to see if the driver fumbles when looking for his/her driver's license, the officer is also checking to see if the driver has a driver's license. Drivers who are driving without a license in California or who are driving on a suspended or revoked California driver's license may also be arrested. This topic is further addressed in Section 3.1. The financial incentive behind driver's license checkpoints.

Experienced California DUI defense attorneys know that if the officers do not follow strict rules and regulations with respect to these checkpoints, any arrests that they make will be considered unlawful. And if an arrest is unlawful, the subsequent charges will most likely be dismissed.

  1. The Rules and Regulations that Govern Sobriety Checkpoint

California checkpoints must adhere to specific requirements in order to be constitutionally recognized.

If they do not, your California DUI defense attorney may be able to have your DUI charges reduced or even dismissed. These requirements relate to:

•who makes decisions with respect to the operation of California sobriety checkpoints,

•when and how DUI roadblocks are operated, and

•the intrusiveness to those stopped at a DUI checkpoint.

2.1. Supervising officers must be in charge

Supervising officers (as opposed to field officers) must determine where, how, and when California sobriety checkpoints will operate. Supervising officers usually determine where these checkpoints will be held based on what areas have the highest concentration of DUI-related accidents and/or arrests.

This regulation also includes establishing the criteria for how cars will be stopped. For example, the supervising officers must determine ahead of time whether field officers will stop every car, every third car, every fifth car, etc.

2.2. The sobriety checkpoint must be reasonably located

The location of the DUI roadblock must be reasonable. This means that the sobriety checkpoint must be in a location where there is a high incidence of DUI-related accidents or arrests. It also means that the supervising officers must consider everyone's safety when choosing where to set up a sobriety checkpoint.

2.3. DUI roadblocks must be publically advertised

California sobriety checkpoints must be publically advertised prior to the date of the roadblock and clearly visible to approaching drivers. With respect to advertising, law enforcement websites, local newspapers, and news stations often report the upcoming checkpoint about a week prior to its operation.

With respect to visibility,

•warning signs,

•flashing lights,

•adequate lighting,

•marked police cars, and

•the presence of uniformed police officers

typically satisfy this requirement.

2.4. Drivers who do not wish to stop at the DUI checkpoint must be allowed to leave

Perhaps one of the most interesting requirements is that you must have the opportunity to drive away from the checkpoint if you don't wish to stop. If you choose to exercise this right, you cannot legally be stopped for doing so unless you (1) commit a traffic violation, or (2) display signs of obvious intoxication.8

When I have a client who is arrested at a California DUI checkpoint, I not only investigate the charge that he/she was driving under the influence...by exploring all the 'typical' California DUI defenses...but I also critically examine the sobriety checkpoint itself to see if all of the legal requirements that relate to these DUI traps are satisfied. When they are not, I may be able to use these fatal flaws to get the drunk driving case dismissed.

  1. California DUI / Driver's License Checkpoints in the News

DUI / driver's license checkpoints are very controversial. Proponents claim that they act as a scare tactic and reduce the number of drunk drivers on the road. Opponents typically claim that they

•are a waste of money,

•inconvenience too many innocent people,

•don't yield enough results, and

•that cops shouldn't be able to bypass the probable cause that is otherwise necessary to conduct a criminal investigation.

3.1. Rules and restrictions

3.1. The financial incentive behind driver's license checkpoints

Earlier this year, the University of California, Berkeley reported that in 2009, DUI / driver's license checkpoints generated approximately $40 million in revenue that was split between local law enforcement agencies and their local towing companies.

Every time an individual is arrested at a California DUI / driver's license checkpoint for driving without a license or for driving with a suspended license, the officers conducting the checkpoint immediately impound the driver's car for 30 days. It then costs, on average, between $1,000 and $4,000 to have the car returned. The tow company splits this income with the city.

Opponents argue that these seizures unfairly target undocumented Hispanic immigrants who are not permitted to obtain driver's licenses but who need cars for work.

Challengers also argue that these checkpoints are illegal and unconstitutional. This is based on a 2005 Ninth Circuit Court of Appeal decision which held that it is an "unreasonable seizure under the Fourth Amendment to impound a vehicle if the only justification is that the driver is unlicensed".

Yet in the five years since that decision, the number of cars seized at these checkpoints has doubled. And opponents state that the reason why is obvious – money.

3.2. Checkpoint publicity

It bears repeating that California DUI law dictates that sobriety / driver's license checkpoints must be publically advertised prior to their operation. Oftentimes, this information is disseminated via the Internet, primarily on blog sites. Most recently, it is being offered in a "Smartphone" application. Some lawmakers were outraged and called attention to the issue, asking the creators of the "app" to take it off the market. As a result of the media attention, sales went through the roof!

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